Sunday , November 19 2017

Company problems

First of all I would like to express my gratitude to the Legal Clinic staff of the Arab Times newspaper for the genuine answers provided on most labor related issues experienced by the expatriate community here in Kuwait.

I was working as an Electrical Engineer – Sales & Marketing Department in a local company from March 2008 to January 2016 (7 years + 10 months) after joining them through a local transfer process.

On Jan 20, 2016, I tendered my resignation effective on same date. The company sent me a clearance paper to return the company property i.e. (car, laptop & mobile phone) to which I complied and I was instructed not to attend office anymore and to find a job elsewhere.

I, however, received a portion of my last salary up to Jan 20, 2016 in my account on Feb 2, 2016. I want to know if I am entitled to 3 months salary notice period as per the labor law as they have not let me serve the 3 months notice period? I was told that for me to claim my indemnity I must provide the company a plane ticket enabling them to cancel my iqama.

“Meaning after receipt of my self-paid plane ticket they will cancel my iqama No.18 then change to visit visa No.14, temporary residence with a validity of 30 days”. Please advise if my understanding is correct. I was told that another way for me to claim my indemnity is to provide the company a transfer paper enabling them to cancel my iqama No.18.

“Meaning I must join another company’s sponsorship, to bring the transfer of sponsor/release paper from them so I can continue my iqama No.18 with the new sponsor. How much time is there for me to transfer to another sponsor?”

Please advise if my understanding is correct. My latest salary is KD 560.000 for the calculation of my dues.

My annual leave was converted into cash as per my request.

Please calculate my indemnity + bonus, if any.

Trust that the above information is clear and for us to understand the whole situation your comments/ analysis are needed for a further line of action.

Name withheld

Answer: The question that arises here is whether you gave a three-month notice for the resignation or not.

If you did not give a three month notice, then the company has the right not to pay you for the three-month period plus deduct an amount equal to three months salary from your outstanding dues.

But in case you gave a three-month notice to the company, then Article 44(d) of the Kuwait Labor Law enacted on Feb 20, 2010 will apply.

This article states as follows: “The employer may exempt the employee from work during the period of notification but shall count such a period within the worker’s period of service. The employer shall pay the worker all the entitlements and remuneration for the period of notification”.

So, you can see that the Labor Law makes it very clear that whether the company wants you to serve the notification period or not, it has to pay you for the three months plus include these three months in your service period. This means that this period has to be taken into account in the calculation of your indemnity, whether the company likes it or not.

On the issue of transfer of residence, the company has to give you “enough time” — normally one to two months — plus it can’t cancel your residence if the company hiring you decides to keep you on a 100-day probation.

A decision in this regard was issued by the Manpower Authority last year. It clearly states that once your transfer letter has been signed you can keep working for the new employer for the probation period on the old employer’s residence until the new work permit is obtained.

The company also can’t refuse to give you a release because you joined them on a local transfer and you are entitled to a transfer after a year of service with this firm.

But the important thing to note here is that the employer must pay all your dues before cancellation of your residence. You have to accompany the employer or his representative to the Ministry of Social Affairs and Labor where you have to sign a certificate saying that you have received all your dues. In case you have not received the dues, you can refuse to sign the certificate and also bring the same to the notice of the ministry.

On the issue of your dues, we can’t talk about your bonus because you have not mentioned whether you are regularly entitled to such an incentive or under what conditions you are offered this bonus.

On the leave issue you have already mentioned that the balance of your annual leave has already been converted to cash. We can’t make any further comment in this regard as we don’t know the balance of your leave.

Your indemnity will be calculated as follows:

Service: 8 years, one month considering that you gave them a three-month notice. (if not just minus three months from the service and calculate in the same way as below)

Salary: KD 560 So you get 15 days pay for each of the first five years = 75 days salary

But these 75 days have to be divided by 26 (working days in a month) = 2.88 months salary

For the remaining period you get one month salary per year of service = 3.08 months salary Total = 5.96 months salary =5.96 x KD 560 =KD 3,337.600

But as you have resigned with your service over 5 years but less than 10 years you are entitled to only two-thirds of the above amount = KD 3,337.600 x 2/3 = KD 2,225 approximately.

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